Tamo Budaru vs State

L.C. Bhadoo, J.—This appeal is directed against the judgment of conviction and order of sentence dated 8-7-99 passed by the 2nd Additional Sessions Judge, Jagdalpur in S.T. No. 47/99, whereby learned Additional Sessions Judge after convicting the accused/appellant for the commission of offence u/s 302 of the IPC for committing murder of his wife Tamodeve, sentenced him to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo R.I. for one year.

The case of the prosecution, in brief, is that on the fateful day at about 8 p.m. in the night of 2-12-98 accused/appellant Tamo Budru was sleeping after taking his meal, at that time, deceased Tamodeve came and started assaulting the accused with an axe saying that as to why he has eaten her food, on which the accused snatched the axe and assaulted the deceased on her head, as a result of which the deceased sustained fatal injury and she succumbed to the injury.

The matter was reported by Sukman (P.W. 1) to the Police Station, Bhansi, on which FIR (Ex. P-1) was registered. After usual investigation, charge-sheet was filed in the Court of Chief Judicial Magistrate, Dantewada, who in turn committed the case to the Sessions Judge, Jagdalpur from where learned 2nd Additional Sessions Judge received the case on transfer for trial.

The prosecution in order to establish the charge against the accused examined 6 witnesses. Statement of the accused was recorded u/s 313 of the Cr.PC, in which he denied the material appearing against him in the prosecution evidence and stated that his wife Tamodeve was attacking him with an axe and she received the injury because she fell down. Learned Additional Sessions Judge after hearing learned Counsel for the accused and Additional Public Prosecutor convicted and sentenced the accused as mentioned in Para 1 of this judgment.

We have heard learned Counsel for the parties.

Learned Counsel for the accused/appellant has not disputed the homicidal death of deceased Tamodeve. Apart from that, from the evidence of Dasru (P.W. 3) and Kamaram (P.W. 4) before whom the accused made extra judicial confession as also medical evidence of Dr. B.K. Tirki (P.W. 5), it is established that the death of deceased Tamodeve was homicidal in nature.

As far as involvement of the accused/appellant in crime in question is concerned, that has also not been disputed by learned Counsel for the accused/appellant. Sukman (P.W. 1), who is the brother of the accused, has stated that the accused came to his house and made extra-judicial confession before him that he has murdered his wife. Thereafter, Panchayat was convened and before the Panchayat also the accused made extra-judicial confession regarding commission of offence. The above evidence has been corroborated by the evidence of Dasru (P.W. 3). Even though this witness has been declared hostile but in the cross-examination by the Public Prosecutor he has categorically stated that the accused made extra-judicial confession before him that as his wife Tamodeve (since deceased) was quarrelling with him on the ground that as to why he has consumed her food and she assaulted him with axe, therefore, he attacked the deceased with same axe, as a result of which she died. Kamaram (P.W. 4) has also corroborated the above evidence and stated that the accused made extra-judicial confession before the Panchayat that he has assaulted the deceased with axe. Dr. B.K. Tirki (P.W. 5) has also stated that there was injury on the head of the deceased, as a result of which there was fracture of parietal bone which was fatal and sufficient to cause death. Therefore, from the evidence of above witnesses, it is established that the accused assaulted the deceased, as a result of which she received fatal injury on the head and succumbed to the injury. Hence involvement of the accused is established.

Learned Counsel for the accused/appellant submitted that if the evidence and case of the prosecution is taken as it is, even then the offence u/s 302 of the IPC was not made out against the accused/appellant for the reason that the accused after consuming his meal was sleeping, at that time, the deceased came with an axe and attacked him saying that as to why he has consumed her food, which enraged the accused, he stood up and snatched the axe all of a sudden and in a sudden quarrel he assaulted the deceased, therefore, the case of the accused is covered under Exception IV of Section 300 of the IPC.

On the other hand, learned Counsel of the State supported the judgment of the Trial Court.

Having heard learned Counsel for the parties, we have perused the evidence. Sukman (P.W. 1) has stated that the accused came and said that deceased Tamodeve attacked him, therefore, he attacked the deceased with axe. Dasru (P.W. 3) before whom the accused made extra-judicial confession, in the cross-examination he has stated that the accused informed him that when he was sleeping the deceased came with axe and attacked him saying that as to why he has consumed her food, on which he snatched the axe and all of a sudden attacked the deceased. Similar is the evidence of Kamaram (P.W. 4). The evidence of above witnesses stands corroborated by the medical evidence. Apart from that, T.R. Nagvanshi (I.O.) (P.W. 6) in Para 4 of his evidence has stated that he had arrested the accused on 12-4-98 and on examination of his body, he found that there was an injury on eye-brow of the left eye and, therefore, he sent the accused for medical examination under Ex. P-16. Perusal of Ex. P-16 shows that there was injury on eye-brow of the accused. Therefore, from the evidence of prosecution witnesses, it is established that in the first instance, the deceased came with axe and assaulted the accused, which enraged the accused, he snatched the axe and assaulted the deceased. In this case, there was no pre-meditation or preparation. The accused assaulted the deceased in a sudden fight, all of a sudden, in a heat of passion and upon sudden quarrel, without taking undue advantage or acted in a cruel or unusual manner, as such, the case of the accused is covered under Exception IV of Section 300 of the IPC, therefore, finding of the Trial Court convicting the accused u/s 302 of the IPC cannot be sustained.

In the result, the appeal partly succeeds. The conviction and sentence imposed upon the accused/appellant u/s 302 of the IPC are set aside, instead thereof, he is convicted u/s 304, Part II of the IPC and sentenced to undergo R.I. for 7 years. The accused is in custody since 4-12-98 thereby be has already undergone 7 years'' sentence, as such he be set at liberty forthwith, if not required in any other case.